Gardner v. . Gardner

87 N.Y. 14 | NY | 1882

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The question presented upon this appeal is whether the injunction order granted prior to the judgment was in force at the time the alleged contempt was committed. By the terms of the order it was to continue in force until the further order of the court. No provision is made in the final judgment or order entered upon the referee's report allowing alimony continuing the injunction, nor was any reference made in said judgment to the injunction, nor was any further or other injunction granted thereby. The claim of the appellant rests upon the theory, that the injunction being unconditional and to continue in force only until a further order is made, no such order having been granted it was abrogated by the final judgment. It is no doubt the general rule that the judgment should control, but the question to be determined upon this appeal is whether this principle applies when the defendant has appealed from the judgment and refused to abide by its requirements. It is well settled that a judgment until reversed is conclusive between the parties to the record upon all matters directly adjudicated. So long as it is in force it must be deemed to have determined their respective rights, and the courts are bound to give effect to its determination. (Fellows v. Heermans, 13 Abb. N.S. 1, 10.) In the case at bar the judgment settled the rights of the parties, and made provision for the payment of alimony amicably. It thus adjudicated upon the subject of the controversy without containing any provision by which the right to the possession and occupancy of the premises was given to plaintiff. This certainly disposed of the injunction and provided for an allowance in its place for the plaintiff's maintenance and support. If the judgment covered the whole case, as is quite manifest, then it superseded the order of injunction and was a substitute for the same, and the order became merged therein. If the judgment was upheld, plaintiff would be deprived of no rights, as security was given upon the appeal. That it might be reversed does not add to the plaintiff's right to uphold the injunction if it was abrogated thereby. There can be no question that the injunction was abrogated by the judgment, if no appeal had been taken, and the bringing up of such appeal cannot change its legal effect upon any sound principle. The judgment might, perhaps, have provided for the plaintiff's occupation of the premises if the court had so determined, and as it did not so adjudge, it must stand subject to the application of legal rules as to its effect upon the rights of the parties. In the case ofPeople ex rel. Morris v. Randall (73 N.Y. 416), it was held that when, in proceedings supplementary to execution, an order was issued restraining a third person from disposing of property in his possession belonging to the judgment debtor "until further order in the premises," an order appointing a receiver is such further order and the final order, and any restraint thereafter desired should be inserted in that order. This decision is directly in point as the case involved the effect of the order. Some cases are cited by the respondent's counsel as upholding a different doctrine, but upon an examination of them we are satisfied that they are not in conflict with the rule laid down, and they relate to actions where the injunction was the principal subject in controversy, and where it would be eminently proper for the court, pending an appeal, to interpose its power to command respect to its judgments and obedience to its authority. (Sixth Ave. R.R. Co. v. Gilbert E.R.R. Co., 71 N.Y. 430;Erie Railway Co. v. Ramsey, 45 id. 637; Power v. Villageof Athens, 19 Hun, 169.)

It follows from the discussion had that the final judgment was the further order of the court and the appeal taken therefrom did not affect the same so as to restore or reinstate the injunction.

The order appealed from should be reversed and the motion on which the same is founded be denied with costs.

All concur, except MILLER, J., not voting.

Order reversed.